State ex rel. Smith v. Chicks, 510

• Decision Date: 10 December 1975
• Docket Number: No. 510,510
• Citation: 70 Wis.2d 833,235 N.W.2d 694
• Parties: STATE ex rel. Sandra SMITH, Respondent, v. Calvin O. CHICKS, Appellant. (1974).
• Court: Wisconsin Supreme Court

Page 694

235 N.W.2d 694

70 Wis.2d 833

STATE ex rel. Sandra SMITH, Respondent, v. Calvin O. CHICKS, Appellant.

No. 510 (1974).

Supreme Court of Wisconsin.

Dec. 10, 1975.

Paternity action. Defendant appeals from an order denying his motion to dismiss the complaint on grounds of lack of jurisdiction. The complaint was drafted by Attorney Henry Hempe, who is not the Rock County District Attorney. It alleged as follows:

'Sandra Smith being first duly sworn, on oath says that she is a resident of the City of Houston, County of Harris, State of Texas and makes this complaint in writing to Hon. John J. Boyle, Judge, County Court, Branch II in and for said County; that she was on the 4th day of October, 1962, at Houston, Texas, delivered of an illegitimate child, and that the child is now alive; that Calvin O. Chicks, of Janesville, Wisconsin, is the father of said child, and she prays that said Calvin O. Chicks be brought before the undersigned to answer said complaint.'

The trial court denied the motion to dismiss, holding that the provisions of Sec. 52.25, Stats., with respect to issuance of a summons by the District Attorney, were directory and not mandatory.

McManus & Haukom by Jack McManus, Madison, for appellant.

Hempe & Daniel by A. Henry Hempe, Janesville, for respondent.

HANLEY, Justice.

Secs. 52.24 and 52.25, Stats., govern the commencement of paternity proceedings. Sec. 52.24 allows the District Attorney to proceed on his own initiative if a woman bears a child out of wedlock which is likely to become a public charge. Under this statute, the District Attorney is allowed to bring the woman before a judge or court commissioner who is required to examine her under oath, 'respecting the father of such child, the time when, and the place where such child was begotten and such other circumstances as he deems necessary.' After examination, the judge or court commissioner may issue a warrant.

Sec. 52.25, Stats., governs proceedings commenced by the mother. If she makes a complaint to the District Attorney, he is required to reduce it to writing under her oath, and may either petition a judge of the county for a warrant, or may proceed as in Sec. 52.24, or may issue a summons himself.

In the instant case the defendant was served with a summons. The summons was not issued by the District Attorney. It was signed by County Judge John J. Boyle. It does not appear whether Judge Boyle conducted a probable cause hearing before he issued the summons.

In holding that the provisions of Sec. 52.25 were directory and not mandatory, the trial court relied on State ex rel. Werlein v. Elamore (1967) 33 Wis.2d 288, 147 N.W.2d 252. In that case the proceedings arose under Sec. 52.24, but the county judge before whom the probable cause hearing was held did not inquire as to 'the place where such child was begotten'. It was held that this was not grounds for dismissal because the place of conception was not material to either the venue of the action or the existence of...